Summary
If you’re a Canadian or Mexican entrepreneur living in the U.S. or planning to launch a business here, you may be wondering: Can I get a TN visa if I own or operate a business?
It’s a smart question and one that requires a clear understanding of U.S. immigration laws. While the TN visa offers a valuable pathway for professionals under the USMCA (formerly NAFTA), it has specific restrictions, especially around self-employment and business ownership.
This article explores when and how business owners or startup founders might qualify for a TN visa, what business structures can work, and which alternative visa options like the E-2 visa may be more appropriate for entrepreneurial paths.
Overview of the TN Visa
Before diving into the eligibility requirements for entrepreneurs and business owners, it’s essential to first understand the general framework of the TN visa. The TN visa is a non-immigrant visa available to Canadian and Mexican nationals who wish to work in the U.S. in one of the professional roles listed under the USMCA.
To qualify for a TN visa, applicants must:
- Be a citizen of Canada or Mexico.
- Work in a profession that is included in the USMCA list of qualifying jobs.
- Have the necessary education and/or experience required for that profession.
For the most part, TN visa holders are expected to have an employer-employee relationship, meaning they must work for a U.S.-based employer who sponsors their visa application. This leads to one of the main challenges for entrepreneurs or business owners: the employer-employee relationship requirement.
The Employer-Employee Relationship Requirement
The TN visa is designed around the idea of an employer-employee relationship. This means that most TN visa applicants are hired by a U.S.-based employer who submits a petition on their behalf. However, self-employment or owning a business in the U.S. complicates this relationship, as the TN visa holder is both the employer and the employee.
To meet the eligibility requirements, the relationship between the business owner and their business must still adhere to TN visa regulations. In essence, the applicant must show that they are engaged in a professional role within the company and are not simply self-employed.
Can Entrepreneurs and Business Owners Qualify for a TN Visa?
The short answer is that self-employed individuals or business owners seeking to qualify for a TN visa must navigate specific rules and structures to ensure they meet the eligibility requirements. Here are the key points to understand:
Self-Employment Restrictions
USCIS has specific guidelines regarding self-employment and ownership stakes in a U.S.-based business. For a TN visa applicant to be eligible as a business owner, they must show that they are working in a role that is aligned with the USMCA profession requirements. However, self-employment is generally not allowed in the traditional sense of TN visa regulations.
Business owners cannot simply claim they are employed by their own company and qualify for a TN visa.
Self-employed applicants must show that their role within the business is structured like a traditional employer-employee relationship, meaning they must be under the direction or control of an external party (i.e., a third-party employer) or demonstrate an established professional relationship.
Acceptable Structures for Business Owners
There are ways for entrepreneurs or business owners to qualify for a TN visa, but they need to structure their businesses carefully. One of the most common and acceptable structures is to work with an independent third-party employer.
For example, if an entrepreneur owns a business in the U.S. but works as a consultant or contractor for another company, this third-party employment structure may allow them to qualify for a TN visa.
A business owner who subcontracts their services to another company, where that company controls aspects of the work, can show they have an employer-employee relationship with the third-party business.
In such cases, the third-party company would serve as the employer for TN visa purposes, while the business owner operates as an employee of that company.
The Risk of RFEs or Denials for Business Owners
Entrepreneurs and business owners should be prepared for the possibility of a Request for Evidence (RFE) or denial if their application does not clearly establish an employer-employee relationship. USCIS has become increasingly vigilant in reviewing applications for business owners, especially those with perceived self-employment structures.
An RFE might be issued if USCIS questions about the legitimacy of the employment relationship or if the application does not demonstrate that the applicant meets the professional qualifications for the TN visa. To avoid this, applicants should provide:
- Clear contracts with third-party employers or clients.
- Detailed job descriptions demonstrating their role within the company that aligns with the USMCA profession requirements.
- Proof of external oversight or a structure that limits their independence and demonstrates a genuine employer-employee relationship.
Alternative Options for Entrepreneurs: The E-2 Visa
For entrepreneurs and business owners who cannot meet the TN visa requirements, the E-2 Treaty Investor Visa might be a better option. The E-2 visa allows foreign nationals to enter and work in the U.S. based on their investment in a U.S. business.
The E-2 visa is available to nationals of countries that have treaties with the U.S., including Canada and Mexico. To qualify, applicants must:
- Invest a substantial amount in a U.S. business.
- Own at least 50% of the business or have a controlling interest.
- Work in an executive or supervisory role or possess skills essential to the business’s operations.
While the E-2 visa is a viable alternative, it requires significant financial investment, and applicants must show they will be actively involved in the operation of the business.
Key Takeaways and Practical Tips for Entrepreneurs and Business Owners
- TN visa holders are required to have an employer-employee relationship, so self-employed individuals must structure their role carefully.
- Third-party employment can help business owners qualify for the TN visa by demonstrating an employer-employee relationship.
- Self-employment or sole ownership of a U.S. company without third-party oversight is generally not allowed under TN visa regulations.
- Alternative options like the E-2 visa might be better suited for entrepreneurs seeking to establish and manage a business in the U.S.
Conclusion
Entrepreneurs and business owners face unique challenges when applying for the TN visa due to the employer-employee relationship requirement. While the TN visa program is not designed for self-employed individuals or business owners, it is possible to qualify if the role is structured properly with a third-party employer or consultant arrangement. However, if this structure isn’t feasible, exploring alternatives like the E-2 Treaty Investor Visa may provide the flexibility needed for business owners looking to expand their operations in the U.S.
Understanding the TN visa rules for self-employment and structuring your business accordingly is crucial for avoiding potential issues like RFEs or denials. By staying informed and working with an immigration attorney, you can better navigate the complexities of obtaining a TN visa as a business owner or entrepreneur.